D.C. Circuit Rules Employer Unlawfully Disciplined Employee for Union-Related Emails

08/06/2009 / Bruce J. Douglas and Laura W. Bartlow*

In July, the United States Court of Appeals for the District of Columbia Circuit unanimously held in Guard Publishing Company d/b/a The Register-Guard v. National Labor Relations Board, No. 07-1528, (D.C. Cir. July 7, 2009) that a publishing company unlawfully disciplined employees for sending union-related emails through the company’s email system. The decision overturned part of a 2007 decision of the National Labor Relation Board (Board) in The Guard Publishing Company, d/b/a/ The Register Guard, 351 NLRB No. 70 (December 16, 2007).

The case concerned emails sent by a company employee using the company’s email system. The employee, who was also the union president, sent one email to employees concerning a recent union rally and, three months later, two emails seeking employee action in support of the union. Guard Publishing had an email communications policy in place which prohibited using the company’s email system “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” After each of the emails, the company disciplined the employee for violating the email policy. The union filed unfair labor practice charges under the National Labor Relations Act (NLRA). The union challenged the non-solicitation email policy as overly broad and alleged that the company enforced the policy in a discriminatory manner by disciplining the employee.

In December 2007, the Board held that the company legally disciplined the employee for two of the three emails sent. The Board held that the policy did not itself violate the NLRA because it was a facially neutral, non-discriminatory policy. Under cases governing employee use of employer-owned equipment, the employees had no statutory right to use a company email system for union matters. However, the Board found that the company discriminatorily enforced the policy by disciplining the employee for sending the email about the union rally when the company had not previously disciplined employees for using its email system for non-work-related purposes. The Board decided that the discipline for the other two emails were lawful applications of the policy. It reasoned that although in practice the company permitted violations of the email policy by employees making personal solicitations, the company did not allow employees to use the email system to send solicitations on behalf of organizations. The Board thus held that an employer can distinguish between personal solicitations and solicitations to support an organization or group. Both parties appealed to the D.C. Circuit Court of Appeals.

The D.C. Circuit overturned portions of the Board ruling. The court set aside the Board’s decision that discipline for the emails soliciting employee support for the union was lawful. Calling the distinction between personal and organizational solicitations a “post hoc invention,” the court noted that neither the company policy nor its enforcement relied on the organizational solicitation rationale. The company policy did not distinguish between solicitations for individuals and for organizations, and the disciplinary warnings issued for the solicitation emails did not mention the distinction. Rather, the court noted, the disciplinary warning actually instructed the employee to “refrain from using the email system for union/personal business.” The court concluded that the only emails that led to discipline were the union-related emails at issue in the case, and thus that the company committed an unfair labor practice.
Because neither party raised the issue on appeal, the court did not address the Board’s determination that a company does not violate the NLRA by maintaining a policy prohibiting use of its email system for all non-job-related purposes, including union purposes. This issue is now ripe for review by the Supreme Court. It is expected that the parties will ask the high court to review the decision of the Court of Appeals.

The D.C. Circuit’s decision was fact-specific, but raises important considerations for employers. The court’s ruling does not change the Board’s decision that a company may implement a neutral, non-discriminatory policy prohibiting use of its email system for non-work-related purposes. Employers who provide employees with email should consider implementing a carefully drafted policy limiting the use of the employer’s email system. An employer should take care that its non-solicitation email policy is clearly and neutrally drafted. It appears that an email policy may distinguish between the use of company email for personal or organizational solicitations, but the policy must clearly state the distinction, and the company must uniformly discipline all non-job-related organizational solicitations. Discipline under the policy should be tied to the policy, preferably referencing the policy’s actual language.

In the Board’s 2007 decision in this case, Board Member Wilma Liebman wrote a strong dissent in which she argued that a policy prohibiting all personal use of an employer’s email system is presumptively unlawful where employees have been given email access for use at work. Liebman is now the Chairman of the National Labor Relations Board. If presented with a case concerning employee use of employer email systems, there is a strong possibility that the Board may conclude that broad policies which prohibit non-job-related uses are presumptively unlawful.

Contact Larkin Hoffman’s Employment Law attorneys if you have any questions regarding this decision or regarding drafting an email policy for your company.

*Ms. Bartlow is 2009 summer law clerk at Larkin Hoffman Law Firm.